State v. Flemming

• Decision Date: 24 March 1992
• Docket Number: No. A-90-998,A-90-998
• Citation: 1 Neb.App. 12,487 N.W.2d 564
• Parties: STATE of Nebraska, Appellee, v. Kelly F. FLEMMING, Also Known as Kelly Borke, Appellant.
• Court: Nebraska Court of Appeals

Page 564

487 N.W.2d 564

1 Neb.App. 12

STATE of Nebraska, Appellee, v. Kelly F. FLEMMING, Also Known as Kelly Borke, Appellant.

No. A-90-998.

Court of Appeals of Nebraska.

March 24, 1992.

Casey J. Quinn of Quinn & Wright, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Barry Waid, Lincoln, for appellee.

Before SIEVERS, C.J., and MILLER-LERMAN and WRIGHT, JJ.

MILLER-LERMAN, Judge.

Kelly F. Flemming appeals the Platte County District Court's denial of his motion to suppress evidence. Flemming asserts that probable cause to issue a search warrant did not exist and that the search warrant was executed at night without satisfying the public interest requirements to justify a nighttime search. The contraband seized formed the basis of Flemming's jury convictions for (1) possession of a controlled substance with intent to deliver, (2) second degree unlawful possession of explosive materials, and (3) possession of a controlled substance.

The State of Nebraska asserts that even if the search warrant is found technically invalid, the evidence should still be allowed under the good faith exception to the suppression rule, citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), as adopted in State v. Parmar, 231 Neb. 687, 437 N.W.2d 503 (1989). For the reasons recited below, the order of the trial court denying the motion to suppress is affirmed.

When reviewing a trial court's ruling on a motion to suppress, the appellate court will uphold the ruling unless it finds that the ruling was clearly erroneous. See, State v. Pope, 239 Neb. 1009, 480 N.W.2d 169 (1992); State v. Patterson, 237 Neb. 198, 465 N.W.2d 743 (1991); State v. Walker, 236 Neb. 155, 459 N.W.2d 527 (1990). The Nebraska Supreme Court has adopted the "totality of the circumstances" analysis in reviewing whether probable cause to issue a search warrant existed. State v. Abraham, 218 Neb. 475, 478, 356 N.W.2d 877, 879 (1984). "Probable cause is defined as a reasonable suspicion founded on articulable facts and does not require a prima facie showing of criminal activity." State v. Hodge and Carpenter, 225 Neb. 94, 99, 402 N.W.2d 867, 872 (1987). Where the totality of the circumstances supports a search warrant, its issuance will not be set aside on appeal.

On January 16, 1990, a judge of the Platte County Court issued a search warrant based on an affidavit. The officer affiant gathered information from numerous sources, including: an informant, Troy Mason; two additional informants and confidential informants, alleging Flemming stored controlled substances in his vehicles; three Crimestoppers reports in 18 months, alleging Flemming was involved in the distribution of controlled substances; and the officer affiant's investigation verifying that the vehicles were registered to Flemming.

Flemming argues that probable cause to issue a search warrant did not exist, inter alia, because (1) the affidavit failed to disclose informant Mason's prior arrest for giving false information, (2) other information in the affidavit was not reliable, (3) Mason's information was stale, and (4) the reliability of the confidential informants was not sufficiently documented.

FALSE INFORMATION

In order for Flemming to invalidate a warrant, he must prove that the " 'affiant made a deliberate falsehood or acted with reckless disregard for the truth, and it must be demonstrated that the challenged material is "material" or necessary to a finding of probable cause.' " State v. LeBron, 217 Neb. 452, 456, 349 N.W.2d 918, 922 (1984) (quoting State v. Sims, 216 Neb. 569, 344 N.W.2d 645 (1984)).

Flemming's motion to suppress did not allege that the officer affiant recited deliberate falsehoods or recklessly disregarded the truth in his affidavit. The record does not clearly show that Flemming attacked the veracity of the officer or that Flemming made a corresponding offer of proof as required. See State v. Williams, 214 Neb. 923, 336 N.W.2d 605 (1983). See, also, State v. Robish, 214 Neb. 190, 332 N.W.2d 922 (1983); State v. Stickelman, 207 Neb. 429, 299 N.W.2d 520 (1980).

In his appellate brief, however, Flemming claims that the officer affiant "withheld the fact that informant Troy Mason was arrested for false information." Brief for appellant at 18. Flemming claims that this omission resulted in a "deliberately or recklessly false affidavit" being presented to the court. Id. at 19.

No specific findings were made by the trial court regarding the officer affiant's alleged omission of Mason's record for false reporting. There is no evidence to suggest that the omission of the false reporting arrest was more than mere negligence or mistake. However, the record does show that the issuing judge was aware that Mason was an informant and was incarcerated at the time the information concerning Flemming's drug possession and trafficking was revealed. Nevertheless, the issuing judge credited the information. The issuing judge was also aware of Mason's description of direct observations of Flemming at his home, in possession of marijuana and weighing methamphetamine with a scale.

"In the case of an informant who speaks from personal observation by way of sight or hearing, the courts generally have held that such firsthand knowledge is self-corroborating and tends to fulfill both aspects of the Aguilar test...." State v. Howard, 188 Neb. 494, 496, 197 N.W.2d 641, 642-43 (1972). It was not unreasonable to believe that narcotics would be found in Flemming's home on the basis of Mason's direct observations. Mason's information was also corroborated by other informants.

The warrant recited that Platte County Crimestoppers had received three calls over the preceding 18 months, indicating that Flemming was "involved in the distribution of controlled substances." The Crimestoppers information was also corroborated by at least three informants who were personally known by the officer affiant and who had provided reliable information in the past. The informants told the officer that Flemming often stored controlled substances in his automobiles. The officer independently confirmed that the automobiles described by the informants were registered to Flemming.

Information voluntarily supplied by a citizen informant is "presumptively reliable." State v. Payne, 201 Neb. 665, 670, 271 N.W.2d 350, 352 (1978). Mason's personal observations, which were corroborated by citizen...